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No. 19-231
In the
Supreme Court of the United States
ROBERT R. REYNOLDS,
Petitioner,
v.
WILLIAM SMITH, Chief Probation Officer, Amantonka Nation Probation Services; JOHN
MITCHELL, President, Amantonka Nation,
ELIZABETH NELSON, Chief Judge, Amantonka Nation District Court,
Respondents.
_____________
On Writ of Certiorari
to the United States Court of Appeals for the Thirteenth Circuit
_______________
BRIEF FOR THE RESPONDENTS
_______________
Team No. 414
Counsel for Respondents
2
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................................... 4
QUESTIONS PRESENTED ..................................................................................................... 7
1. Given that Congress reaffirmed Indian tribes’ “powers of self-government” to have
criminal jurisdiction over “all Indians,” 25 U.S.C.A. § 1301(d) (West 2018) and petitioner
is an enrolled member of the Amantonka Nation, should this Court hold petitioner is a
non-Indian for purposes of special domestic violence criminal jurisdiction, when doing so
would usurp Indian tribes’ inherent sovereign authority to “define its own membership for
tribal purposes,” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)? ................ 7
2. Provided that Congress intended to leave special domestic violence criminal
jurisdiction defense attorney licensing requirements for tribes to determine, see S. Rep.
111-93, at 17 n. 57, Tribal Law and Order Act of 2009 (October 29, 2009), and tribes
determine the standards for public defenders for indigent Indian defendants under 25
U.S.C.A. § 1302 et seq. (West 2018), did the Amantonka Nation District Court provide
equal protection under tribal law to Petitioner by providing him with a court-appointed
tribal public defender who held a J.D. and was licensed to practice law in the Amantonka
Nation Bar Association? ....................................................................................................... 7
STATEMENT OF THE CASE ................................................................................................. 8
1. Statement of Facts ......................................................................................................... 8
2. Statement of the Proceedings ........................................................................................ 8
ARGUMENT ............................................................................................................................ 9
3
I. Courts should look to the Amantonka Nation Code for the definition of “Indian”
because the Rogers Test undermines Congress’ exercise of plenary power and usurps Indian
tribes’ inherent sovereign authority. ......................................................................................... 9
A. The spirit of the Duro Amendment is consistent with reaffirming Indian tribes’ ability
to define “Indian” for purposes of criminal jurisdiction. .................................................... 11
B. Under the Amantonka Tribal Code, petitioner satisfies all three elements of “Indian”
for purposes of tribal criminal jurisdiction. ........................................................................ 14
C. The Rogers Test is at odds with Congress’ plenary power and Indian tribes’ inherent
sovereign authority. ............................................................................................................. 16
II. Regardless of whether petitioner is an “Indian,” petitioner’s equal protection rights were
not violated with the appointment of a tribal public defender. ............................................... 18
A. The Court should hold petitioner is an Indian for purposes of tribal criminal
jurisdiction and petitioner’s equal protection challenge fails under scrutiny. .................... 18
B. Alternatively, if the Court deems petitioner is a non-Indian for purposes of SDVCJ,
petitioner’s rights to representation under the Violence Against Women Act of 2013 were
satisfied by petitioner’s indigent defense counsel. ............................................................. 21
CONCLUSION ....................................................................................................................... 27
4
TABLE OF AUTHORITIES
Page(s)
CASES
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)......................................................20
Bollinger v. Sharpe, 247 U.S. 497 (1954)................................................................................20
Duro v. Reina, 495 U.S. 676 (1990)......................................................................10, 13, 14, 18
Ex Parte Kan-gi-shun-ca (Otherwise known as Crow Dog), 109 U.S. 556, 572 (1883)...6, 7, 9
Goforth v. State, 644 P.2d 114, 116 (Okla. Crim. App. 1982)................................................17
Makah Indian Tribe v. Clallam County, 73 Wash. 2d 677, 440 P.2d 442 (1968)...................17
Morton v. Mancari, 417 U.S. 535 (1974).............................................................18, 19, 20, 25.
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).......................................................9
Reynolds v. Amantonka Nation, No. 17-198…..................................................................16, 23
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)..................................7, 9, 10, 11
St. Cloud v. United States, 702 F. Supp. 1456, 1460 (D.S.D.1988)........................................17
Strickland v. Washington, 466 U.S. 668 (1984)......................................................................24
Sully v. United States, 195 F. 113 (8th Cir.1912)....................................................................17
Vezina v. United States, 245 F. 411 (8th Cir.1917).................................................................17
United States v. Antelope, 430 U.S. 641 (1977)................................................................18, 20
United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005)............................................17, 18
United States v. Kagama, 118 U.S. 375, 382, 385 (1886).......................................................13
United States v. Lara, 541 U.S. 193 (2004).......................................................................11, 14
United States v. Loera, 952 F. Supp. 2d 862 (D. Ariz. 2013)..................................................17
United States v. Other Medicine, 596 F.3d 677, 680 (9th Cir. 2010)......................................12
5
United States v. Rogers, 45 U.S. (4 How.) 567 (1846)......................................................10, 17
United States v. Wheeler, 435 U.S. 313 (1978).......................................................................13
United States v. Zepeda, 792 F.3d 1103, 1110 (9th Cir. 2015).............................10, 15, 17, 18
Weinberger v. Weinberger, 420 U.S. 636 (1975)....................................................................20
CONSTITUTION, STATUTES, AND LEGISLATIVE HISTORY
U.S. CONST. art. I, § 8, cl. 3...............................................................................................12, 20
U.S. CONST. amend. V.............................................................................................................20
U.S. CONST. amend. VI............................................................................................................24
18 U.S.C. § 1153................................................................................................................10, 15
18 USC § 2266(4)....................................................................................................................15
25 U.S.C. § 1301......................................................................................................7, 10, 11, 20
25 U.S.C. § 1302..........................................................................................7, 13, 19, 24, 25, 26
25 U.S.C. § 1304................................................................................................8, 22, 23, 24, 27
137 Cong. Rec. H2988 (daily ed. May 14, 1991)....................................................................11
S. Rep. 111-93, at 17 n. 57 (October 29, 2009) ..................................................................7, 25
CODES AND RULES
Amantonka Nation Code Title 2, Ch. 6, § 503(2)–(3).............................................................21
Amantonka Nation Code Title 2, Ch. 7 Code of Ethics for Attorneys and Lay Counselors...26
Amantonka Nation Code Title 3, Ch. 2, § 201....................................................................8, 15
Amantonka Nation Code Title 3. Ch. 2, § 202........................................................................15
Amantonka Nation Code Title 3, Ch. 2, § 203........................................................................15
Amantonka Nation Code Title 5, § 244...............................................................................8, 16
6
Rules for Admission of Applicants to the Practice of Law in Arizona, Rule 34(b) Applicant
Requirements and Qualifications, Arizona Supreme Court Rules
(https://www.azcourts.gov/Portals/26/admis/2017/RulesOfAdmission_2017.pdf).................26
Rules for Admission of Attorneys in Oregon, Rule 3.05 Qualifications of Applicants, Oregon
Supreme Court Rules (January 2019)
(https://www.osbar.org/_docs/rulesregs/admissions.pdf).......................................................26
MISCELLANEOUS
AM. INDIAN L. DESKBOOK § 4:10 (2018 ed.)............................................................................12
AM. INDIAN L. DESKBOOK § 4:12 (2018 ed.).....................................................................11, 13
Angela R. Riley, Crime and Governance in Indian Country, 63 UCLA L. Rev. 1564 (2016)
............................................................................................................................................21, 22
April L. Seibert, Who Defines Tribal Sovereignty? An Analysis of U.S. v. Lara, 28 AM.
INDIAN L. REV. 393, 397 (2004)...............................................................................................11
ABA Model Rules of Professional Conduct 1.1......................................................................26
ABA Model Rules of Professional Conduct 1.3......................................................................26
FELIX S. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW (2012 ed.).....................19, 20, 21, 25
7
QUESTIONS PRESENTED
1. Given that Congress reaffirmed Indian tribes’ “powers of self-government” to have
criminal jurisdiction over “all Indians,” 25 U.S.C.A. § 1301(d) (West 2018) and
petitioner is an enrolled member of the Amantonka Nation, should this Court hold
petitioner is a non-Indian for purposes of special domestic violence criminal
jurisdiction, when doing so would usurp Indian tribes’ inherent sovereign authority to
“define its own membership for tribal purposes,” Santa Clara Pueblo v. Martinez,
436 U.S. 49, 72 n.32 (1978)?
2. Provided that Congress intended to leave special domestic violence criminal
jurisdiction defense attorney licensing requirements for tribes to determine, see S.
Rep. 111-93, at 17 n. 57, Tribal Law and Order Act of 2009 (October 29, 2009), and
tribes determine the standards for public defenders for indigent Indian defendants
under 25 U.S.C.A. § 1302 et seq. (West 2018), did the Amantonka Nation District
Court provide equal protection under tribal law to Petitioner by providing him with a
court-appointed tribal public defender who held a J.D. and was licensed to practice
law in the Amantonka Nation Bar Association?
8
STATEMENT OF THE CASE
Despite being an enrolled tribal member of the Amantonka Nation, petitioner, Robert
R. Reynolds, seeks to be classified as a non-Indian for purposes of special domestic violence
criminal jurisdiction (SDVCJ) under § 1304(a)(6) since he does not possess any degree of
Indian blood. Accordingly, petitioner seeks habeas corpus relief from this Court because he
alleges the Amantonka Nation failed to appoint petitioner with an adequate indigent defense
counsel required under the § 1304 as a result of petitioner’s non-Indian status.
1. Statement of Facts
Prior to becoming a naturalized citizen of the Amantonka Nation, petitioner married
his wife Lorinda Reynolds, an Amantonka citizen. For two years after getting married,
petitioner and his wife lived and worked on the Amantonka Indian Reservation. Petitioner
then voluntarily started and completed the process to become a naturalized citizen under the
Amantonka Tribal Code, Title 3, ch. 2, § 201 et seq.
Over one year after becoming a naturalized citizen, the Amantonka tribal police
responded to a call of domestic violence at petitioner’s home on the Reservation. It is
undisputed that petitioner struck his wife with an open palm, causing her to fall onto a coffee
table and break her rib. Petitioner was arrested, charged, and later found guilty by a jury for
violating Title 5, § 244 (partner or family member assault) of the Amantonka Tribal Code.
The District Court for the Amantonka Nation sentenced petitioner, in part, to seven (7)
months of incarceration with a $1,500 fine.
2. Statement of the Proceedings
Petitioner appealed his criminal conviction to the Supreme Court of the Amantonka
Nation on the same bases as petitioner’s pre-trial motions, which the district court denied.
9
The supreme court affirmed the district court’s holding and petitioner sought habeas relief in
the United States District Court for the District of Rogers. The United States District Court
relied on, without citing to any authority, the proposition that “[f]ederal law clearly limits
criminal jurisdiction over ‘Indians’ and provides a definition of ‘Indian’ that requires some
degree of Indian blood.” Through this reasoning, the United States District Court held that
petitioner’s civil rights guaranteed by the Fifth Amendment, Indian Civil Rights Act, and the
Violence Against Women Act of 2013 were violated because the Amantonka Nation failed to
provide petitioner with adequate indigent defense counsel. The United States Court of
Appeals for the Thirteenth Circuit reversed the United States District Court’s opinion on the
basis that tribes have the right to define and control their own memberships. Santa Clara
Pueblo v. Martinez, 436 U.S. 49 (1978). The Thirteenth Circuit thus held that petitioner was
an Indian for purposes of the respondent’s criminal jurisdiction because petitioner is an
enrolled tribal member, and that because of petitioner’s Indian status, the Amantonka Nation
appointed him with adequate indigent defense counsel. Petitioner appealed to the United
States Supreme Court, and this Court granted certiorari on October 15, 2018.
ARGUMENT
I. Courts should look to the Amantonka Nation Code for the definition of “Indian”
because the Rogers Test undermines Congress’ exercise of plenary power and
usurps Indian tribes’ inherent sovereign authority.
Whether petitioner is an “non-Indian” for purposes of SDVCJ directly concerns a
tribe’s inherent sovereign authority to “define its own membership for tribal purposes.” Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978). Congress, through its plenary power,
restored tribal governments inherent “‘powers of self-government’ . . . to exercise criminal
10
jurisdiction over all Indians.” 25 U.S.C.A. § 1301(2) (West 2018) (referring to what is
commonly known as the Duro Amendment). Here, Congress expressly defines “Indian” as
“any person who would be subject to the jurisdiction of the United States as an Indian under
[the Indian Major Crimes Act, 18 U.S.C.A. § 1153 (West 2018)], if that person were to
commit an offense listed in that section in Indian country.” § 1301(1)(4).
The Indian Major Crimes Act “does not define ‘Indian,’ but ‘courts have judicially
explicated its meaning.’” United States v. Zepeda, 792 F.3d 1103, 1110 (9th Cir. 2015)
(internal quotations omitted). The primary source of such judicial explication dates back to
1846; before the United States ratified the Fourteenth Amendment of the Constitution and
before Congress created either the Indian Civil Rights Act or the Indian Major Crimes Act.
See United States v. Rogers, 45 U.S. (4 How.) 567 (1846) (referring to the Rogers Test). The
Indian blood quantum requirement created by the first prong of the Rogers Test has distorted
Congress’ intention of the Duro Amendment and usurped tribes’ inherent “powers of self-
government . . . to exercise criminal jurisdiction over all Indians,” § 1301(2). As such,
applying the Rogers Test to the definition of “Indian” here is inconsistent with Congress’
“clear expression of intention,” Ex Parte Kan-gi-shun-ca (Otherwise known as Crow Dog),
109 U.S. 556, 572 (1883) (referring to the congressional power that developed into the
plenary power doctrine), to restore tribal governments inherent sovereign authority, which
fundamentally includes the ability to “define its own membership for tribal purposes,” Santa
Clara Pueblo, 436 U.S. at 72 n.32, including tribal criminal jurisdiction.
11
A. The spirit of the Duro Amendment is consistent with reaffirming Indian
tribes’ ability to define “Indian” for purposes of criminal jurisdiction.
The Duro Amendment revolutionized the congressional plenary power doctrine
because it demonstrated that Congress has the ability to not only restrict tribal affairs, but
also to reaffirm Indian tribes’ already-existing powers of self-government. See United States
v. Lara, 541 U.S. 193 (2004); see AM. INDIAN L. DESKBOOK § 4:12 247 (2018 ed.). The Duro
Amendment “changed the language of § 1301 to state ‘the powers of self-government means
. . . the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians.’” April L. Seibert, Who Defines Tribal Sovereignty? An
Analysis of United States v. Lara, 28 AM. INDIAN L. REV. 393, 397 (2004) (quoting 25 USC §
1301(2)) (internal quotations omitted) (emphasis added). Congress’ intention with the Duro
Amendment cannot be misinterpreted. Id. The Congressional Record states that “‘this bill
recognizes an inherent tribal right which always existed. It is not a delegation of authority but
an affirmation that tribes retain all rights not expressly taken away.’” Id. (citing 137 CONG.
REC. H2988 (daily ed. May 14, 1991)) (internal alterations omitted). As such, the spirit of the
Duro Amendment is to broaden the congressional plenary power doctrine and reaffirm the
inherent sovereign authority Indian tribes possess to have criminal jurisdiction over its
members.
To fully appreciate and understand the spirit of the Duro Amendment, however, a
brief examination of its rich, contextual legal history is warranted. Prior to the creation of the
congressional plenary power doctrine, Congress exerted constitutional authority over tribal
affairs primarily through the Indian Commerce Clause of the United States Constitution, U.S.
CONST. art. I, § 8, cl. 3. The Indian Commerce Clause provides that “[t]he Congress shall
12
have Power . . . to regulate commerce with foreign Nations, and among the several States,
and with the Indian Tribes.” Id. Neither Congress nor the Court interpreted the Commerce
Clause as giving Congress the power to regulate internal tribal affairs until 1883. See AM.
INDIAN L. DESKBOOK § 4:10 240 (2018 ed.) In Ex Parte Crow Dog, 109 U.S. at 572, the
Supreme Court held that only through a “clear expression of the intention of [C]ongress”
may the federal government exercise federal jurisdiction over internal Indian affairs. Id.
Thus, Crow Dog cemented its place in legal history for “planting the seeds” for the
congressional plenary power doctrine to flourish. See generally AM. INDIAN L. DESKBOOK §
4:10 240 (2018 ed.)
And so, it did; but as congressional plenary power strengthened, tribal sovereign
authority suffered. In 1885, Congress passed the Major Crimes Act of 1885 “to give federal
courts jurisdiction over crimes ‘that might go unpunished under tribal criminal justice
systems.’” AM. INDIAN L. DESKBOOK § 4:10 241 (2018 ed.) (citing United States v. Other
Medicine, 596 F.3d 677, 680 (9th Cir. 2010)). When challenged, the constitutionality of the
Major Crimes Act of 1885 was upheld as a necessary power of the federal government to
protect Indians as “‘wards of the nation’” and provide “safety [for] those among whom they
dwell.” United States v. Kagama, 118 U.S. 375, 382, 385 (1886). Resultantly, the Major
Crimes Act of 1885 provided the necessary “clear expression,” Ex Parte Crow Dog, 109 U.S.
at 572, of Congress’ intention to assume federal jurisdiction over certain enumerated offenses
carried out by Indians in Indian country.
Despite the enactment of the Major Crimes Act, this Court reaffirmed the inherent
sovereign authority Indian nations had left to exercise criminal jurisdiction over Indians who
violated tribal law. United States v. Wheeler, 435 U.S. 313 (1978); AM. INDIAN L. DESKBOOK
13
§ 4:12 246 (2018 ed.). In Wheeler, this Court went so far as to acknowledge that this inherent
power was never extinguished, as tribes were self-governing sovereigns prior to the creation
of the United States. Id. at 322.
Tribes’ powers of self-government, however, were further limited in two significant
ways. See AM. INDIAN L. DESKBOOK § 4:12 246 (2018 ed.). First, Congress limited tribes’
criminal jurisdiction to prosecute and sentence Indians through the creation of the Indian
Civil Rights Act of 1968, which prevents tribal courts from ordering sentences “greater than
imprisonment for a term of 1 year or a fine of $5,000, or both.” § 1302(7)(B). And second,
the Supreme Court provided that tribes’ criminal jurisdiction over Indians did not extend to
non-Indians whether or not they violate tribal law on tribal land. See Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191 (1978).
The latter limitation was exacerbated in Duro v. Reina, 495 U.S. 676 (1990), when
this Court held an Indian tribe lacked criminal jurisdiction over a non-member Indian. Id. As
a result of Duro, nonmember Indians were equated to non-Indians for purposes of criminal
jurisdiction. AM. INDIAN L. DESKBOOK § 4:12 246 (2018 ed.). In 1990, Congress responded
swiftly to restore tribal sovereign authority with the Duro Amendment, which “modified the
definition of ‘powers of self-government’ to include ‘the inherent power of Indian tribes,
hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.’” Id. at
247 (emphasis added). Despite constitutional challenges, see e.g., United States v. Lara, 541
U.S. 193 (2004), this Court has upheld the Duro amendment as an appropriate exercise of
congressional plenary power.
To hold petitioner is not an Indian for purposes of tribal criminal jurisdiction would
frustrate the spirit of the Duro Amendment. The spirit of the Duro Amendment is undeniably
14
to strengthen Indian sovereign authority, which had been constitutionally diminished for
decades prior, by broadening the definition of “powers of self-government” to encompass
“all Indians” within tribal criminal jurisdiction. The legislative history of the Duro
amendment demonstrates that, at a minimum, “all Indians” means Indians who are either
members of that tribe or members of another tribe. See Duro v. Reina, 495 U.S. at 679
(noting the petitioner in Duro was an enrolled member of another Indian Tribe). Regardless
of which tribe, however, what determined whether someone in Duro was Indian was the
mere fact of their tribal membership. Accordingly, the Duro amendment’s change to “all
Indians” implies any Indian, regardless of which tribe he or she is an enrolled member.
Therefore, the Duro Amendment inclines this Court to hold that tribes possess the inherent
sovereign authority to define “Indian” through the applicable membership enrollment
requirements for purposes of criminal jurisdiction.
B. Under the Amantonka Tribal Code, petitioner satisfies all three elements of
“Indian” for purposes of tribal criminal jurisdiction.
Classifying petitioner as an “Indian” for purposes of tribal criminal jurisdiction,
instead of a “non-Indian” for purposes of SDVCJ, is consistent with Congress’ exercise of
their expansive plenary power and Indian tribes’ inherent sovereign authority. Accordingly,
petitioner is an Indian for purposes of tribal criminal jurisdiction because petitioner is an
enrolled tribal member of the federally-recognized Amantonka Indian Tribe, petitioner
committed the crime of domestic violence which is an enumerated offense under 18 U.S.C.A.
§ 1153 (West 2018), and petitioner committed an offense within the boundaries of Indian
country as defined by § 2266(4). As such, this Court should honor Congress’ clear intention
to restore this specific aspect of inherent tribal sovereignty, recognize respondent’s power of
15
self-government to carryout petitioner’s criminal penalty, and affirm the Thirteenth Circuit’s
holding.
Petitioner satisfied the eligibility and procedural requirements to voluntarily become a
naturalized member of the Amantonka Nation. Title 3, Chapter 2 of the Amantonka Nation
Code governs the requirements for naturalization. To be eligible to apply for naturalization, a
person must marry “a citizen of the Amantonka Nation” and have “lived on the Amantonka
reservation for a minimum of two years.” Title 3, Ch. 2, § 201. Additionally, the person must
“complete a course in Amantonka culture” and “Amantonka law and government,” “pass the
Amantonka citizenship test,” and “perform 100 hours of community service with a unit of the
Amantonka Nation government.” Title 3. Ch. 2, § 202. “Upon successful completion of the
Naturalization process, the applicant [is] sworn in as a citizen of the Amantonka Nation . . .
[and] is thereafter entitled to all the privileges afforded [to] all Amantonka citizens.” Title 3,
Ch. 2, § 203.1
The following facts are undisputed and reflected in the Record. After both graduated
from the University of Rogers, Petitioner married Lorinda Reynolds who was and still is a
citizen of the Amantonka Nation. Reynolds v. Amantonka Nation, No. 17-198 at I. After
getting married, the two became employed on the Amantonka Nation Reservation and
“moved into an apartment in the tribal housing complex.” Id. “Two years after the couple got
married, [petitioner] applied to become a naturalized citizen of the Amantonka Nation.
[Petitioner] successfully completed the process, took the oath of citizenship, and received his
Amantonka Nation ID card.” Id. At trial, petitioner was found guilty by a jury of his peers for
1 While the exact privileges afforded to members of the Amantonka Nation are not stated within the record, typical privileges afforded to members of Indian tribal nations in general include tribal housing and medical care, see Zepeda, 792 F.3d at 1108.
16
violating Title 5, Section 244 of the Amantonka Nation Code.2 Although being an “Indian” is
not an element of the crime for purposes of SDVCJ3, petitioner was tried as an Indian within
the power of the Tribe’s criminal jurisdiction because he was a naturalized Amantonka
Nation citizen at the time the offense occurred. Reynolds v. Amantonka Nation, No. 17-198 at
II. Given this, being an Indian is both a jurisdictional and substantive element of the crime to
which petitioner was charged and ultimately satisfied due to his enrollment status. Therefore,
petitioner satisfies every requirement to be considered an enrolled member of the Amantonka
Nation, and thus an “Indian” for purposes of tribal criminal jurisdiction.
C. The Rogers Test is at odds with Congress’ plenary power and Indian tribes’
inherent sovereign authority.
Applying the Rogers Test, as well as its corollaries like the Bruce Test, and the Duro
Amendment together is inconsistent and at odds with the congressional plenary power
doctrine and tribes’ inherent sovereign authority.
The first prong of the Rogers/Bruce Tests refers to requirement that a person possess
some degree of Indian blood to achieve Indian status. United States v. Bruce, 394 F.3d 1215,
1223 (9th Cir. 2005). No serious legal scholar today would deny that United States v. Rogers,
45 U.S. (4 How.) 567 (1846), is a racist, “nearly 170-year-old-case,” Zepeda, 792 F.3d at
1118 (J. Kozinski concurring), that was decided by this Court during the Termination Era.
The Court in Rogers held that defendant, a white man who had been adopted into the
2 “A person commits the offense of partner or family member assault if the person: (1) intentionally causes bodily injury to a partner or family member.” Amantonka Nation Code Title 5, § 244(a)(1). 3 “The Amantonka Nation District Court is vested with jurisdiction to enforce all provisions of this Code against a non-Indian who has committed an act of . . . domestic violence against an Indian victim within the Amantonka Nation’s Indian country provided the non-Indian has sufficient ties to the Amantonka Nation.” Title 2, § 105(b). Sufficient ties include non-Indians who “[a]re a spouse . . . of . . . [a] member of the Amantonka Nation.” Amantonka Nation Code Title 2, § 105(b)(1).
17
Cherokee Indian tribe and was evading prosecution by the United States government, was not
an “Indian” for purposes of the Indian Trade and Intercourse Act of 1834 because defendant
was not a member of the “unfortunate [Indian] race.” Rogers, 45 U.S. at 572 (referring to an
Indian blood quantum) (emphasis added); Zepeda, 792 F.3d at 1118.
In Bruce, 394 F.3d at 1215, the Ninth Circuit reluctantly applied Rogers in the
context of the Indian Major Crimes Act because it felt bound by the jurisprudence of Indian
enrollment standards. Id. at 1225. In the same paragraph, the Ninth Circuit even admitted that
“[f]rom a purely conceptual standpoint, we agree that eligibility for enrollment provides a
simpler framework within which we might judge Indian status.”4 Id. This is likely because,
as the concurrence in Bruce pointed out, “[r]eliance on pre-civil war precedent laden with
dubious racial undertones seems an odd course” for any court to follow. Zepeda, 792 F.3d at
1118.
Assuming, however, that the racially discriminatory undertones of the Rogers/Bruce
Tests were not enough to warrant its departure from courts, the first prong of the
Rogers/Bruce Tests is arbitrarily applied because there is no uniform standard for how much
blood quanta is required to achieve Indian status, Bruce, 394 F.3d at 12235; proving blood
quanta beyond a reasonable doubt presents significant evidentiary difficulties, e.g. Zepeda,
4 Ironically, the second prong of the Bruce Test places the greatest weight on whether someone is an enrolled tribal member to determine if he or she is an “Indian.” Bruce, 394 F.3d at 1124. 5 The court in Bruce recognized that defendants in the following cases possessed sufficient blood quanta to achieve Indian status: “Vezina v. United States, 245 F. 411 (8th Cir.1917) ([woman was 1/4 to 3/8 Chippewa Indian held to be Indian]); Sully v. United States, 195 F. 113 (8th Cir.1912) ([1/8 Indian blood not traceable to a tribe held sufficient to be Indian]); St. Cloud v. United States, 702 F. Supp. 1456, 1460 (D.S.D.1988) ([15/32 of Yankton Sioux blood held to be Indian]); Goforth v. State, 644 P.2d 114, 116 (Okla. Crim. App. 1982) (requirement of Indian blood satisfied by testimony that person was slightly less than one-quarter Cherokee Indian); Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968) (1/4 Makah blood sufficient to satisfy Indian blood requirement).” Bruce, 394 F.3d at 1223-24.
18
792 F.3d at 1108; and blood quanta could inevitably become diluted over time to the point
where, one day, no one will be able to satisfy this requirement.
It’s also worth noting the jurisdictional void6 created by the Rogers/Bruce Tests that
courts have continuously attempted and failed to gap-fill. See, e.g., United States v. Antelope,
430 U.S. 641 (1977); United States v. Loera, 952 F. Supp. 2d 862 (D. Ariz. 2013); Reina,
495 U.S. at 676. Even if defining “Indian” under a tribal code does not solve the
jurisdictional void, at least its existence would be consistent with Congress’ exercise of its
plenary power to give tribes the inherent sovereign authority over such affairs.
For these reasons, the Rogers/Bruce Tests is not an administrable standard standing
alone. More importantly, however, unless this Court departs from applying the Rogers/Bruce
Tests, this area of law will continue to be at odds with Congress’ exercise of plenary power
through the Duro amendment to reaffirm tribal sovereignty, specifically in the area of
defining who is an “Indian” for tribal purposes such as criminal jurisdiction.
II. Regardless of whether petitioner is an “Indian,” petitioner’s equal protection
rights were not violated with the appointment of a tribal public defender.
A. The Court should hold petitioner is an Indian for purposes of tribal criminal
jurisdiction and petitioner’s equal protection challenge fails under scrutiny.
Since petitioner is an Indian under Amantonka Nation criminal jurisdiction, he was
afforded the equal protection under tribal law that is required by the Indian Civil Rights Act,
25 U.S.C.A. § 1302(a)(8) (West 2018). Petitioner loses his equal protection claim under
Morton v. Mancari, 417 U.S. 535 (1974), because the Tribe’s indigent right to counsel
6 The jurisdictional void refers to gaps in the statutory scheme where a defendant may commit a crime in Indian country but no sovereign has criminal jurisdiction to prosecute it. Bruce, 394 F.3d at 1221-22.
19
requirements are “rationally tied” to promoting tribal self-governance and he was in fact
provided equal protection under the law.
The Indian Civil Rights Act prohibits a tribe from denying any person under its
jurisdiction the equal protection of law or deprivation of liberty without due process. §
1302(a)(8). Even though this Court has not yet interpreted the meaning of § 1302(a)(8),
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 963 (2012) (hereinafter COHEN), there is case
law on equal protection in Indian country.
The governing law of equal protection in Indian country comes from the first equal
protection challenge to federal Indian law: Morton v. Mancari, 417 U.S. at 535. See COHEN
at 951. In Morton, this Court would not apply strict scrutiny because “Indian” was not a
racial classification but a political classification, so the law’s “Indian” classification must be
“rationally tied to Congress’ unique obligation” to promote tribal self-government. Morton,
417 U.S. at 554, 555 (stating “[a]s long as the special treatment can be tied rationally to the
fulfillment of Congress’ unique obligation toward the Indians [to promote tribal self-
government], such legislative judgments should not be disturbed.”). Additionally, “Indian”
classifications in federal law are a constitutional and common practice. See, e.g., U.S. CONST.
art. 1, § 8, cl. 3; see § 1301(4); see United States v. Antelope, 430 U.S. 641, 645 (1977)
(singling out “Indians” in legislation is permitted and supported by the text of the U.S.
Constitution and by the U.S. government’s historical and current federal Indian policy).
Further, traditional strict scrutiny equal protection analysis, see Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995); Weinberger v. Weinberger, 420 U.S. 636, 638 n.2 (1975)
(mirroring the Fourteenth Amendment’s equal protection approach in the Fifth Amendment’s
equal protection approach); Bollinger v. Sharpe, 247 U.S. 497, 499 (1954), is impracticable
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with the corpus of federal Indian law because it would disrupt the “federal-Indian
relationship.” COHEN at 952 (inferring that “Indian” classifications in the law would struggle
to pass muster under such a stringent test).
In relying on Morton’s rational ties test, the inquiry here is whether the Amantonka
Nation Code’s right to counsel statutes are reasonably and rationally designed to further
Indian self-government and not a product of invidious racial discrimination? See Morton, 417
U.S at 555.
As the Tribal Code was applied when petitioner was appointed a tribal public
defender, there was no equal protection violation in this case. Indigent Indian and non-Indian
defendants under Amantonka Nation criminal jurisdiction will receive the same level of
criminal defense representation. Thus, regardless of Indian status, indigent defendants are
indigent defendants under Amantonka Nation criminal jurisdiction and they are treated alike.
The Tribe’s public defender qualifications go above and beyond what Indian Civil
Rights Act requires for Indian defendants. As an Indian, petitioner did in fact receive a belt-
and-suspender criminal defense that goes beyond the Indian Civil Rights Act’s legal
requirements.
So, petitioner was not denied equal protection of law because Indigent Indian and
non-Indian defendants receive the same right to counsel in Amantonka Nation District Court.
Under the Amantonka Nation Code, Indian and non-Indian indigent defendants are entitled to
court-appointed counsel, see Title 2 § 503(2)–(3) Amantonka Nation Code (declaring Indian
and non-Indian defendants alike are entitled to the appointment of a tribal public defender).
While as a matter of law Indian defendants are only entitled to lay counselors, see Title 2 §
503(3) Amantonka Nation Code, regardless of Indian status every indigent defendant under
21
the Tribe’s criminal jurisdiction in fact receives a legally trained tribal public defender. This
is because all the Amantonka Nation tribal public defenders have juris doctorates from ABA
accredited law schools and are admitted to practice law in a United States jurisdiction. Thus,
the distinction between Indian status makes no difference in this context, and petitioner was
afforded equal protection under the law.
B. Alternatively, if the Court deems petitioner is a non-Indian for purposes of
SDVCJ, petitioner’s rights to representation under the Violence Against
Women Act of 2013 were satisfied by petitioner’s indigent defense counsel.
Originally, the Indian Civil Rights Act did not provide for any right to defense
counsel for indigent defendants, but this was later fixed with the Tribal Law and Order Act in
2010 for defendants who could face imprisonment for longer than one year. COHEN at 980–
82. Now, the 2013 reauthorization of the Violence Against Women Act “affirms the inherent
sovereign authority of tribes to exercise special domestic violence criminal jurisdiction over
non-Indians who commit acts of domestic violence or dating violence that occur in the Indian
country of the participating tribe, as long as the perpetrator has sufficient ties to the
prosecuting tribe.” Angela R. Riley, Crime and Governance in Indian Country, 63 UCLA L.
Rev. 1564, 1591 (2016). That said, “[p]rotection of the people from crime is one of the core
functions of government. Without safety, individuals cannot flourish, seek education or
pursue other life goals. The tribes implementing both [Tribal Law and Order Act] and
[Violence Against Women Act of 2013], respectively--during the pilot project and since--
have continuously emphasized the importance of criminal authority to tribal sovereignty,
which includes the legal and moral obligation to protect tribal citizens.” Id. at 1598.
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There are signs that tribes are exercising this authority in a way that protects indigent
defendants’ civil rights. Until at least 2016, there has not been one tribal court defendant
prosecuted under the Violence Against Women Act of 2013 who has filed a writ of habeas
corpus seeking relief in federal court, which could imply that tribal courts support and protect
defendant’s civil rights. See id. at 1611 n. 250. For example, the Pascua Yaqui Tribe
exercised its SDVCJ giving us “[t]he one and only non-Indian defendant in the past forty
years to be prosecuted by an Indian tribe and tried by a reservation-based jury [that] resulted
in an acquittal . . . At the same time, in Indian country, the case has come to stand for the
proposition that non-Indians unquestionably can get a fair trial in tribal court.” Id. at 1615
(discussing Pascua Yaqui Tribe v. Montae Lamont Garris, CR-14-432 (Nov. 14, 2014)).
Given Congress’ aim with the Violence Against Women Act of 2013 to promote
tribal sovereignty and the rule of law, the Amantonka Nation can exercise SDVCJ over
petitioner under § 1304. Section 1304(b)(4)(B) requires the defendant have sufficient ties to
the tribe for the tribe to exercise SDVCJ over a non-Indian. Sufficient ties to the tribe are
established by the defendant meeting one of three factors: “(i) resides in the Indian country of
the participating tribe; (ii) is employed in the Indian country of the participating tribe; or (iii)
is a spouse, intimate partner, or dating partner of-- (I) a member of the participating tribe; or
(II) an Indian who resides in the Indian country of the participating tribe” § 1304(b)(4)(B).
Here, petitioner meets all three factors and more. Petitioner resides in Indian country
in tribal housing, he is employed as a manager at a distribution center on the Amantonka
Reservation, and he is the spouse of Mrs. Lorinda Reynolds, who is a citizen of the
Amantonka Nation. Further, petitioner is himself a naturalized tribal member of the
Amantonka Nation because he voluntarily underwent the naturalization process in Title 3,
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Chapter 2 of the Amantonka Nation Code. He also committed the relevant criminal conduct
for § 1304(c) by committing domestic violence against his wife in Indian country. Thus, the
Tribe can safely exercise its SDVCJ over petitioner.
Even if the SDVCJ representation requirements are triggered, the Tribe provided
adequate representation to petitioner. Factually, the Tribe provided petitioner adequate
representation with his court-appointed tribal public defender for three reasons. First,
petitioner’ attorney held a J.D. from an American Bar Association (ABA) accredited law
school and was a member in good standing of the Amantonka Nation Bar Association, see
Reynolds v. Amantonka Nation, No. 17-198 at II (explaining that the tribal code does not
require tribal public defenders representing Indians possess a J.D. as a matter of law, but all
Amantonka tribal public defenders do in fact possess a J.D. from an ABA accredited law
school). Second, there are no facts in the record that the state and tribal bar exams are
different. Lastly, petitioner did not allege his counsel committed any errors representing him.
Even if SDVCJ standards apply, the petitioner’s appointed attorney’s representation
was legally adequate. Under § 1304, a defendant’s rights under § 1302(c) kick in if the Indian
tribe imposes a “term of imprisonment of any length.” Here, petitioner was given a seven-
month sentence. So, his SDVCJ representation rights are triggered.
If the Court holds petitioner’s SDVCJ rights are triggered, § 1302(c) requires two
things. First, the court-appointed counsel is at least equal to the effective assistance of
counsel required by the U.S. Constitution. § 1302(c). Second, “at the expense of the tribal
government, provide an indigent defendant the assistance of a defense attorney licensed to
practice law by any jurisdiction in the United States that applies appropriate professional
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licensing standards and effectively ensures the competence and professional responsibility of
its licensed attorneys [emphasis added].” Id.
First, the U.S. Constitution’s Sixth Amendment (“In all criminal prosecutions, the
accused shall . . . have the assistance of counsel for his defense”) standard for effective
assistance of counsel is determined under the two-pronged test in Strickland v. Washington,
466 U.S. 668 (1984). To prove ineffective assistance of counsel, the defendant must prove
two things: 1) ineffective or deficient assistance of counsel, and 2) the defendant was
prejudiced by the deficient assistance of counsel, such that but for the deficient representation
the outcome of the proceeding would have been different. Id. at 687. Here, petitioner’s
defense counsel met the U.S. Constitution’s standards set forth in Strickland. Since petitioner
didn’t allege any errors committed by his court-appointed attorney, the Strickland test cannot
be applied. Therefore, any constitutional challenge based on ineffective assistance of counsel
has no merit.
Second, there is no injurious difference between standards set for attorneys in the
Amantonka Nation Code and other comparable, relevant bodies of law. And, Congress
intended to leave determining defense attorney licensing standards to the tribe by allowing
defense attorneys to be licensed in “any jurisdiction in the United States” as a way to
promote tribal self-government. See S. Rep. 111-93, at 17 n. 57, Tribal Law and Order Act of
2009 (October 29, 2009) (“The intent of the section 304 licensing requirements for public
defenders and tribal court judges respects the dual purposes of the Indian Civil Rights Act to
protect the rights of individuals before tribal courts, and to acknowledge and strengthen tribal
self-government . . . Whether the standard employed is a state, federal, or tribal standard will
25
be a decision for the tribal government. Several tribal governments have developed their own
tribal law standards and others have adopted state licensing standards.”).
Since Congress clearly and unambiguously left licensing standards to individual
tribes under § 1302(c), the Amantonka Nation only requires tribal licensure in the
Amantonka Nation Bar Association for its tribal public defenders. This licensing standard
satisfies the “any jurisdiction in the United States” language in § 1302(c) because the
Amantonka Nation is a jurisdiction in the United States.
Further, if ambiguities in § 1302(c) persist after examining Congress’ intent, reading
§ 1302(c)’s legislative history with the Indian law canons of construction further supports the
Amantonka Nation providing effective assistance of counsel by only requiring tribal
licensure. Generally, the Indian law canons of construction require reading statutes in the
light most favorable to the tribe and resolving all ambiguities in favor of the tribe. COHEN at
113–14 (outlining the four basic tenets of the Indian law canons: 1) liberal construal of legal
language in favor of Indians; 2) all legal ambiguities in the language are resolved in favor of
Indians; 3) “treaties and agreements are to be construed as the Indians would have
understood them;” and, 4) “tribal property rights and sovereignty are preserved unless
Congress’ intent to the contrary is clear and unambiguous”). Here, the most beneficial
reading of the statute allows the Amantonka Nation to require only tribal licensure for tribal
attorneys for SDVCJ purposes. Furthermore, reading § 1302(c) in this way supports the
Tribe’s interest in furthering its sovereignty, and it supports Congress’ “unique” Morton
obligation to further tribal self-government by leaving the licensing standards to tribes.
Moreover, Amantonka tribal public defenders’ competence and professional
responsibility are effectively ensured because they must pass the Amantonka Nation’s Bar
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Exam to practice law in tribal court. See Title 2 § 607 Amantonka Nation Code, and see
generally Title 2, Chapter 7 Code of Ethics for Attorneys and Lay Counselors (outlining the
professional responsibilities of Amantonka Nation barred attorneys). The requirements found
in Title 2 § 607 Amantonka Nation Code are nearly identical to that of other U.S.
jurisdictions’ Bar admission requirements. See, e.g., Rules for Admission of Applicants to
the Practice of Law in Arizona, Rule 34(b) Applicant Requirements and Qualifications,
Arizona Supreme Court Rules
(https://www.azcourts.gov/Portals/26/admis/2017/RulesOfAdmission_2017.pdf) (requiring,
inter alia, graduation from an ABA accredited law school and passage of a bar exam), and
Rules for Admission of Attorneys in Oregon, Rule 3.05 Qualifications of Applicants, Oregon
Supreme Court Rules (January 2019)
(https://www.osbar.org/_docs/rulesregs/admissions.pdf) (requiring, inter alia, graduation
from an ABA accredited law school and passage of a bar exam).
Further, the requirements found in Title 2, Chapter 7 Code of Ethics for Attorneys
and Lay Counselors are similar to the requirements found in the ABA Code of Professional
Responsibility. Compare Amantonka Canon 1 Competence, with ABA Model Rules of
Professional Conduct Rule 1.1 Competence (these two rules have nearly identical phrasing).
Amantonka Nation’s Canon 3 the ABA’s Diligence and Rule 1.3 Diligence are also nearly
identical. Compare Amantonka Canon 3, with ABA Model Rules of Professional Conduct
Rule 1.3 (these two rules have nearly identical phrasing). Given the near mirrored letter of
the law concerning attorney qualifications and professional responsibility of the Amantonka
Nation Code, the ABA’s Model Rules of Professional Conduct, and other jurisdictions
statutes, no cognizable injury to the petitioner occurred from lower legal standards for
27
attorneys by arguing facial discrepancies in the Tribal Code. Furthermore, as applied,
petitioner’ defense attorney had more qualifications than the Tribal Code demanded.
Thus, petitioner was afforded legally sufficient legal counsel under § 1304 and his
constitutional rights were not violated in any way.
CONCLUSION
For the reasons stated above, this Court should honor Congress’ exercise of plenary
power and reaffirm Indian tribes’ inherent authority to define “Indian” for purposes of
criminal jurisdiction by affirming the holding of the United States Court of Appeals for the
Thirteenth Circuit. Additionally, this Court should hold that, as a person with Indian status,
petitioner was afforded equal protection of the law through the defense counsel appointed by
the Amantonka Nation. Even if, however, this Court decides petitioner is a non-Indian for
purposes of special domestic violence jurisdiction, this Court should nonetheless find that
petitioner’s defense counsel satisfied his rights under the Violence Against Women Act of
2013.
